CORVALLIS, Ore. -- The Oregon Department of Agriculture and the USDA refused to alert the public that genetically modified bentgrass had spread from a test plot in Western Idaho to irrigation ditches in Eastern Oregon.

Carol Mallory-Smith, an Oregon State University weed scientist, made the discovery last month after she received samples from farmers in Malheur County. The Roundup-resistant creeping bentgrass, under development by The Scotts Co., isn't approved for unrestricted commercial production.

She asked ODA and USDA's Animal and Plant Health Inspection Service, the agency responsible for regulating the crop, to make the discovery public. Both declined.

Mallory-Smith believed it was important for farmers to be on the watch for the genetically modified bentgrass.

And she believed the information was potentially relevant to a lawsuit being waged in U.S. District Court in San Francisco. In the suit, federal Judge Jeffrey White is deciding whether to allow restricted production of genetically engineered sugar beet stecklings.

White earlier this year halted production of Roundup Ready beets, pending a new environmental study.

"The issue for me was, I thought it should be disclosed to both sides of the sugar beet lawsuit," Mallory-Smith said. "It may not have any legal implications, but in fairness to both sides, I thought it should be disclosed."

Mallory-Smith decided to act on her own.

"I notified Scotts, I notified the Oregon Department of Agriculture, and I notified the people involved in the sugar beet lawsuit," she said.

On Nov. 4, an Earthjustice attorney introduced the information in testimony in the steckling case, making the information public.

ODA Director Katy Coba said the department didn't feel it was its place to publicize the discovery.

"It's not an Oregon Department of Agriculture issue," Coba said. "Our role has been trying to find alternative pesticides for folks to use in irrigation ditches. This is strictly a federal issue, and it is an APHIS issue."

In an e-mail response to Capital Press questions, APHIS said the incident is still under investigation: "When the investigation is complete, we will notify the public of our findings," the agency said.

The agency said it has inspectors and compliance specialists on the ground investigating the incident.

On Oct. 14, Mallory-Smith received a package containing samples of bentgrass plants that Malheur County residents shipped to the OSU weed lab. The residents were unfamiliar with bentgrass, having never seen the plant in the area before, Mallory-Smith said. They found they couldn't kill the plants with Roundup.

"It was in the irrigation ditches," Mallory-Smith said. "They didn't know what it was, and it wasn't dying."

Mallory-Smith was familiar with the Roundup-resistant gene from working with The Scotts Co.'s bentgrass plants in Central Oregon in the early and mid-2000s. She found the gene in the samples. The next day she hopped a plane to Ontario and surveyed irrigation canals between Ontario and Nyssa.

"I surveyed nine miles north-to-south and two-to-three miles east-to-west, and saw it throughout the area," she said.

"My guess is some of those plants have been there for three or four years," Mallory-Smith said. "They are well established. It has gone to seed. It has been spreading for a while."

Mallory-Smith said she subsequently learned that Scotts was finding escapes on an annual basis outside the two Canyon County, Idaho, trial sites since removing the fields in 2006. Scotts planted the fields in 2005.

The information was not particularly surprising: Mallory-Smith found escapes when working with the Roundup-resistant bentgrass in Central Oregon. But it was alarming, she said.

"It would have been nice to have a heads-up that they are still finding plants over in Parma (Idaho) close to the field, so that you could be monitoring for it (in Oregon)," Mallory-Smith said.

As the crow flies, the test fields are within four miles of the irrigation canals in Eastern Oregon, which is within the range of escapes that Mallory-Smith found in Central Oregon.

"Maybe three years ago, we could've said to these irrigation districts that you ought to be on the lookout," she said.

Back in Corvallis, Mallory-Smith started working with state and federal scientists on removing the bentgrass.

The big hurdle, she said, is finding an efficacious herbicide registered for irrigation ditches.

Only two herbicides are registered for irrigation ditches in Oregon, according to Rose Kachadoorian with the Oregon Department of Agriculture. One is Rodeo, an aquatic version of Roundup. The other is Roundup, which is approved for dry ditches. Both, of course, are ineffective on the bentgrass.

"Part of the problem is the EPA considers irrigation canals an aquatic site -- even if you are not directly applying the pesticide to water -- and they require aquatic pesticide data," Kachadoorian said. "And registrants haven't generated those data."

The department is working with EPA and OSU to try to find one or more herbicides with sufficient efficacy to take out the bentgrass with a toxic profile safe to aquatic species, Kachadoorian said.

The department hopes to find and register the herbicide under an emergency use permit in a short time frame -- hopefully in time to control the plants this year before temperatures dip to levels that render herbicides ineffective.

Whether the discovery ultimately affects the sugar beet suit is unclear. Mallory-Smith believes the tiny seeds involved in the bentgrass escape are far more given to spreading outside field borders than sugar beet stecklings. But plaintiffs in the suit are using the escapes as a cautionary example that the herbicide-resistant gene can escape beyond field borders.

In the e-mail response to whether the escape could play a role in the lawsuit, R. Andre Bell, an APHIS public affairs specialist, said: "That remains to be seen."

The escape also could play a role in The Scotts Co.'s efforts to get the Roundup-resistant bentgrass deregulated.

Jim King, a spokesman for The Scotts Co., said he doesn't think it will.

"Assuming it is deregulated, you likely are going to have situations where you have seed spills here, pollen flows there," he said. "Once you identify it is there, it is a very controllable plant. It's just that there is one herbicide that doesn't work on it."

The company is moving forward on efforts to deregulate the crop, he said.

"We continue to have conversation with folks at APHIS and folks at USDA and hope to have it deregulated sooner rather than later," King said.

APHIS slapped Scotts Miracle-Gro with a $500,000 civil penalty in 2007 after Mallory-Smith and other scientists found nine genetically modified bentgrass plants within a three-mile radius of a seed-production field near Madras, Ore.

The field was planted to transgenic bentgrass in 2002 and plowed out in 2003.

Mallory-Smith said she found biotech bentgrass plants that originated from seed 4.5 miles from the field. EPA scientists found the biotech bentgrass gene in plants 12 miles from the field.

Under the Plant Protection Act, APHIS has authority to impose fines up to $1 million for willful violations, Bell said in the e-mail response.

"APHIS inspectors and compliance specialists are investigating," he said.